Kitzmiller decision violated Federal Rules of Evidence
During the Dover trial, plaintiffs’ expert witness, biologist Kenneth Miller, testified that he presented Judge John E. Jones with “more than three dozen scientific studies showing the origin of new genetic information by these evolutionary processes.” The plaintiffs’ attorneys, working with the NCSE, successfully convinced Judge Jones to parrot Miller by stating in the Kitzmiller v. Dover ruling that Miller had “pointed to more than three dozen peer-reviewed scientific publications showing the origin of new genetic information by evolutionary processes.”
Federal Rules of Evidence Rule 803(18) says,
Learned treatises: To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. (emphasis added)
The above publications presented by Ken Miller were apparently "received as exhibits" instead of being "read into evidence," in violation of the above FRE rule (what Miller did is sometimes called "bibiliography bluffing"). This rule was also violated when a stack of publications was dumped in front of defendants' expert witness Michael Behe.
The scientific questions in the case should have simply been declared to be "non-justiciable." A question is considered to be non-justiciable when there is a "lack of discoverable and manageable standards for resolving the question" (Vieth v. Jubelirer).